Opinion
No. FA 05-4012391S.
December 6, 2006.
MEMORANDUM OF DECISION.
The plaintiff, Stephanie Young, brought this action with a return of July 19, 2005, to dissolve the parties' 24-year marriage. Each party appeared with counsel for a three-day trial in June, July and September of this year, testified, and offered certain exhibits into evidence. The wife asks for 60 percent of the marital estate, lifetime alimony of half the husband's income from employment and rents, and payment of her legal expenses. The husband proposes that she receive instead one-third of the assets and alimony of $50,000 for five years. The court has heard and carefully weighed all of the evidence according to the standards required by law, scrutinized and evaluated the credibility and demeanor of the parties, and considered the parties' arguments and proposed orders in light of the statutory criteria for awarding alimony, property, and counsel fees.
The parties were married on June 18, 1981, in North Branford, Connecticut. Both have lived in Connecticut for more than a year prior to the bringing of this action. Neither one has received any state or municipal financial assistance. There are no children issue of the marriage. The marriage between the parties has broken down irretrievably with no reasonable hope of reconciliation. All statutory stays having expired, the court has jurisdiction to dissolve the marriage.
This was the second marriage for each party, and each one brought certain assets into the marriage. Mr. Young owned a home at 80 Bailey Drive in North Branford that was worth between $80,000 and $100,000 and had less than $7,000 in mortgage debt and is today worth $315,000 (an amount to which the parties stipulated). An attorney practicing law in the New Haven area, he also brought to this marriage an interest in his law firm's profit-sharing plan that was then worth approximately $86,000 and is now valued at $1,472,636.14, stocks and savings worth approximately $73,000, an IRA worth approximately $130,000 then and $150,000 now, and a one-sixth interest in a commercial property that was then worth about $10,000 and sold for approximately $120,000 a decade ago. His stock portfolio has grown to almost two million dollars and his total assets today are worth approximately 4.2 million dollars. At the time of this marriage, Ms. Young owned a home on Summer Island Road in North Branford that was then worth
approximately $100,000 and generated rental income for her for many years during the marriage until she sold it. She also had between $45,000 and $50,000 in a savings account. Today her bank accounts, stocks, and other assets are worth slightly more than $270,000.
During the marriage Mr. Young's income from his practice of law and other assets was the primary means by which the parties paid the household expenses. Ms. Young stayed home, where she cleaned, cooked, ironed, and managed the household. Although she testified that she "loved taking care of my home and my husband," was "very happy with my marriage," and "liked doing what I did," the evidence shows that the parties' financial arrangements became increasingly unsatisfactory to her. From the beginning, they kept their funds separate. Although Mr. Young gave her money each week for groceries and a credit card that she frequently used, she testified at trial that she felt that her husband was "very cheap" to her. She also testified that he was verbally abusive, demeaning, and controlling. Although Mr. Young admitted being insensitive to his wife sometimes, he denied verbally abusing her any more than she did him. Instead, he testified that his wife has a "contentious nature," took umbrage at the slightest offense, would argue with anyone, and that he and she argued about "everything and something and nothing." For example, the evidence shows that Mr. Young is devoted to his two daughters from his first marriage and one grandchild, and he credibly described how Ms. Young broke off relations with both of those daughters, refused to join him for his weekly dinner with one of them, and had similar instances of being estranged for lengthy periods from members of her own family.
Although much of the testimony from both parties focused on each one's claims about the other's conduct, the court does not find that either one has any greater or lesser responsibility for the breakdown of this marriage. Mr. Young did not understand that his wife gained pleasure from being a homemaker; to him, the housework she did was boring and had little meaning. But though Ms. Young wanted to be supported financially by someone else, she did not see herself as having to join in her husband's endeavors and rarely entertained his business clients or shared much with his work colleagues (other than those who were her own social friends). Although the court finds more credible the husband's accounts of his wife's temper than hers of him verbally abusing her, rather than finding either party here bearing greater fault for the breakdown of this marriage, the court finds instead that the parties over time became incompatible with each other, through no proven fault on the part of either. Just as his testimony about her temperament matched hers about his insensitivity, her attitude toward his work was as much a refutation of it having any value, other than as a source of funds, as was his view of the emptiness of her life as a homemaker.
Although having recently turned 70 years old and facing various health problems, Mr. Young continues to practice law. A partner in a small New Haven law firm, he earns $950 per week; and, along with the other partners, at the end of the year he also receives a portion of the firm's additional profit based on his productivity during the year. He earned a total of $151,925 in 2005, $173,248 in 2004, $173,875 in 2003, $133,229 in 2002, and $167,352 in 2001. Both parties also receive Social Security benefits — $144 per week for the plaintiff and $404 per week for the defendant. Other than rather vaguely stated expressions of doubt as to whether he will receive the same bonus this year as last, the defendant provided no reason not to believe that his bonus for 2006 would be significantly different, and the court thus finds that his bonus this year is likely to be the same as last year. Thus, his average weekly income from employment, including that bonus, and social security for the year is $3,326 gross and $2,410 net. The plaintiff's total income from her social security and dividend income is $255 per week gross and net.
The defendant's financial affidavit also lists income of $1,000 per week from Merrill Lynch, but review of last year's joint tax return filed by the parties suggests that he has somewhat total higher income from all sources other than his job and social security. The parties' total taxable income and adjusted gross income for last year was $228,140. Their tax return also showed $13,265 of tax-exempt dividends and interest and $4,303 in untaxed social security benefits for a total of taxable and untaxed income of $248,405, of which the plaintiff's share from her social security and dividends probably did not exceed $13,260 (her current weekly income from social security and dividends of $255 times 52). Thus, the defendant's total annual income, from taxable and tax-exempt sources, was approximately $235,000, or average weekly income of $4,522 gross and $3,677 net. The defendant has provided no credible reason why his average annual weekly income this year, after he receives his year-end bonus, will not be the same.
The combined assets of the parties are worth slightly less than 4.4 million dollars, most of those accumulated by Mr. Young. The wife's proposed orders ask that she be awarded 60 percent of the marital assets, with the parties "given a credit for their premarital assets," and "alimony equal to 50% of his earned . . . and rental income for life." In closing argument at trial, the husband asked the court to award his wife one-third of the total marital assets and alimony of $50,000 per year for five years, non-modifiable as to term. The difference between the parties' property proposals is close to one million dollars. Without evidence as to the parties' life expectancies or a crystal ball to predict how long Mr. Young will continue earning his present income from the practice of law, it is more difficult to value the difference in their alimony proposals, but, at his present income level, that difference is more than $25,000 a year.
Ms. Young bases her claim for a greater share of the marital estate on several factors. Based on the court's findings above, fault for the breakdown is not a relevant factor in this case. Both parties have health problems, both having been diagnosed with and treated for cancer, high cholesterol and hypertension. Surgery in connection with the treatment of cancer has also caused each one certain physical problems. In addition, the wife uses a hearing aid and the husband suffers from periodic gout. There is a difference, however, in the parties' levels of education, their work histories, their vocational and income prospects, and their future abilities to acquire assets. In view of Mr. Young's law degree and bar certificate, his present income from employment, his earning potential and his capacity to amass future assets all exceed those of his wife, but his age and health both suggest that this greater capacity may not last long. Ms. Young is a high school graduate and has a limited work history. In neither of her marriages did she work outside the home, and, between her 1976 divorce and the parties' marriage in 1981, she had part-time jobs and partially depleted her savings. At age 63, she does not particularly want to start working now but despite her age and health she is capable of working at a full-time job, and, for purposes of considering alimony orders, the court finds that she has an earning capacity of working 35 hours a week at minimum wage, which is currently $7.40 an hour in Connecticut. The court also recognizes, however, that the ages and health of the two parties make it impossible to predict how long either will be able to continue working.
Another statutory factor relevant to equitable division of property is "the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." General Statutes § 46b-81(c). In many instances, a spouse who stays home to care for hearth and home plays equally much a part in the other spouse's ability to work and acquire assets as the working party. An equitable division of property in such a mutual partnership recognizes their equal contributions. See Werblood v. Birnbach, 41 Conn.App. 728, 735, 678 A.2d 1 (1996) (holding that "the trial court must accord value to those nonmonetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables the family to acquire tangible marital assets . . ." (internal quotation marks omitted)). This court's property orders take into account the plaintiff's non-monetary contributions to the defendant's ability to work, earn a substantial income, and acquire an estate worth almost four million dollars, for Ms. Young's homemaking services obviously aided Mr. Young's ability to work and acquire his estate. Yet the court has also found credible the husband's testimony that his wife did not entertain clients often, refused to attend social and other gatherings of his work colleagues, and generally did not take a part in his work. Under these circumstances, the court finds that Ms. Young did not regard herself or act like she was in an equal partnership with her husband in the acquisition of their estate. That was a role she left exclusively to him. Thus, unlike some cases where the non-working spouse may play an equal, albeit non-monetary, role in the parties' ability to acquire assets; see, e.g., Rolla v. Rolla, 48 Conn.App. 732, 735, 712 A.2d 440 (1998) (where "the trial court found that the contributions of the parties were `virtually equal' "); the court does not find such here. In this case, the court finds that the husband played a significantly greater role in the acquisition of income and estate and that the equitable division of property should reflect this fact, as well as the somewhat greater value of the assets the husband brought to the marriage.
After considering all the evidence and information presented in this case in light of the statutory factors a court must consider in the equitable division of property, the court will order the husband to transfer to the wife assets worth 1.6 million dollars, which, together with the assets already in her own name, will leave her with assets worth almost 1.9 million dollars. After considering the evidence and statutory factors for awards of alimony, the court also orders Mr. Young to pay his wife alimony of $75 per week plus 40 percent of his gross weekly income and the same percentage of the gross amount of any year-end distribution of his law firm's profits or other income he receives from the law firm as compensation for services he renders during the year. The parties did not provide the court with enough information to assess the effect of the property division on the respective incomes of the parties, but this order will come close to equalizing their incomes from employment and social security (if Ms. Young chooses to work at the level of her earning capacity). During the year, Mr. Young shall also pay for the cost of maintaining his wife on his present health insurance, or reasonably comparable insurance, until she is eligible for medical insurance and prescription coverage under Medicare, but the cost of his doing so shall be deducted from her 40 percent share of the year-end distribution of profits.
Finally, the wife also asks for an award of counsel fees. Section 46b-62 of the General Statutes permits awards of counsel fees in family matters, but requires that the court consider the parties' "respective financial abilities and the criteria set forth in section 46b-82." Moreover, the court must take care that its determination of this question does not substantially undermine its other financial orders:
In determining whether to award counsel fees the trial court must consider the total financial resources of the parties in light of the statutory criteria. The statutory criteria are to be applied in light of the following three broad principles: First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third where, because of other orders, the potential obligee has ample liquid funds, an allowance of counsel fees is not justified. If, on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees.
(Citations omitted; quotations omitted.) Miller v. Miller, 16 Conn.App. 412, 418, 547 A.2d 922 (1988). The court notes that the husband has already paid $5,000 toward her counsel fees because she charged that amount on a credit card that he pays. Based on the evidence offered, and after considering the parties respective financial positions in light of the statutory factors set forth in § 46b-82, as elucidated by the court in Miller v. Miller, the court declines to order the husband to pay any additional amount toward the wife's counsel fees.
ORDERS
After considering all of the evidence and information presented in light of the statutory criteria and relevant judicial decisions for dissolving a marriage and entering orders regarding alimony, equitable distribution of property and division of debt, life insurance, and award of counsel fees, the court hereby enters the following orders:
A. Dissolution of marriage
The marriage of the parties, having broken down irretrievably, is hereby dissolved.
B. Alimony
1. The husband shall pay the wife alimony of $75 per week plus 40 percent of his gross weekly income earned from employment and the same percentage, less the cost he has incurred for her health insurance, of the gross amount any year-end distribution of his law firm's profits or other income he receives from the law firm as compensation for services he renders during the year. During the year, he shall also pay for the cost of maintaining his wife on his present health insurance, or reasonably comparable insurance, until she is eligible for medical insurance and prescription coverage under Medicare, but the cost of his doing so shall be deducted from her 40 percent share of the year-end distribution of profits.
2. Alimony will terminate on death of either party or the wife's remarriage. If the wife cohabits with another, as that term is defined by statute and has been construed by the courts, then alimony may be modified or terminated as the factual circumstances warrant.
3. The plaintiff shall procure such life insurance to secure the alimony order that he can purchase for $2,000 per year.
4. Alimony shall be payable by immediate wage execution unless such is waived by plaintiff.
C. Equitable Division of property
1. The husband shall transfer to the wife the sum of $1.6 million, allocated as follows unless the parties otherwise agree in writing: $625,000 from his profit-sharing plan, stocks worth, as of the date of transfer, $750,000 from the Merrill Lynch brokerage account and $65,000 from the New Alliance stocks, and the balance in cash. The court retains jurisdiction to enter qualified domestic relations orders necessary to effectuate the provisions of this paragraph; the parties shall split the reasonable cost for preparation of such orders, to be prepared by an attorney selected by defendant.
2. Except as otherwise herein ordered, all property listed on each party's financial affidavit is awarded to that party and each party will be responsible for the debt listed on its financial affidavit and indemnify and hold the other harmless thereon. If Ms. Young has moved back into the Baily Drive home before issuance of this decision, she shall have two weeks to vacate the premises.
3. As the parties informed the court that they had a stipulation regarding personal property but did not present it to this judge, the court will retain jurisdiction over distribution of personal property. To the extent that the parties have not resolved those issues, the court finds that household furnishings in the Bailey Drive home should be divided equally. If they cannot agree on how to effect such a division, they shall seek mediation from family services. If they still cannot agree, each party shall submit a list of the property in dispute to the court with a brief statement as to why each party claims each such item and its approximate value, and the court shall award such property.